F. Prohibited Practices

Table of Contents

1. Employer Prohibited Practices

Generally, Section 10(a)(1) violations are most commonly found as derivative violations of other Section 10(a) violations because violations of other subsections of the Law also interfere with, restrain and coerce employees in the exercise of their rights under the Law. However, independent of other subsections, an employer violates Section 10(a)(1) of the Law when it engages in conduct that may reasonably be said to tend to interfere with, restrain, or coerce employees in the free exercise of their rights under Section 2 of the Law.[334]

The focus of an independent Section 10(a)(1) violation analysis is the effect of the employer’s conduct on reasonable employees exercising their Section 2 rights.[335] In analyzing a case:

The CERB does not consider the motivation behind the conduct.[336]

The CERB does not consider whether the coercion succeeded or failed.[337]

The CERB considers the objective impact that the employer’s conduct would have on a reasonable employee under the circumstances.[338]

The subjective impact of the employer’s conduct is not determinative.[339]

Expressions of anger, criticism or ridicule directed to employees’ protected activities have been recognized to constitute interference, restraint and/or coercion of employees.[340] Even without a direct threat of adverse consequences, the CERB has found a violation when an employer makes disparaging remarks about an employee’s exercise of protected activities.[341] However, the prohibition against making statements that would tend to interfere with employees in the exercise of their rights under the Law does not impose a broad “gag rule” that restricts employers from publicly expressing their opinion about matters of public opinion.[342]

Examples of independent Section 10(a)(1) violations include:

Admonishment of an employee for choosing not to discuss the merits of a grievance with the employer or tell the employer before moving it to Level 3 of the grievance procedure.[343]

Administrative inquiry coupled with threatening remarks.[344]

Announcement of intent to promulgate a restrictive policy aimed at union communications.[345]

Application of a different manner and method of interrogation for union president.[346]

Coercive interrogation regarding union activities.[347]

Criticism of an employee for alleged misconduct in the course of engaging in protected activity where the employee is innocent.[348]

Demeaning and disparaging remarks.[349]

Direct and indirect statements indicating the employer’s willingness to have bargaining unit members arrested for publicly airing their views about collective bargaining matters.[350]

Implementation of a discriminatory rule.[351]

Non-explicit threats where the language used can be reasonably construed as threatening.[352]

Overbroad directive to bargaining unit members regarding performance of duties that employer issued in response to teachers work-to-rule action.[353]

Removal of union literature posted on the employer’s bulletin board based solely upon the content of the literature.[354]

Surveillance of union activities.[355]

Threat of layoffs if grievances or prohibited practice charges are filed.[356]

Threat of suspension for bringing union representation to meeting.[357]

Threats regarding a grievance, even though employees continued to file grievances after the threat.[358]

Threat to lower budget appropriations and implement layoffs if the union failed to support the budget committee’s strategy and sought an increase in a department’s appropriation.[359]

The following are examples of employer conduct that did not violate Section 10(a)(1):

Critical expression of opinion without anger either in tone or language that did not demean employees.[360]

Letter criticizing police officers for conduct following a sexual harassment incident referred to matters outside or beyond the protection of the Law.[361]

Letter does not disparage, ridicule, or criticize the union or employees’ exercise of protected rights.[362]

Providing compensation for employer witnesses at a CERB proceeding but not union witnesses.[363]

Statement about “swimming with piranhas” where, in the context of the entire conversation, did not “chill employees from exercising their Section 2 rights.[364]

2) Weingarten

A public employer that denies an employee the right to union representation at an investigatory interview that the employee reasonably believes will result in discipline interferes with the employee’s Section 2 rights, in violation of Section 10(a)(1) of the Law.[365] In determining whether an employer has unlawfully denied union representation to an employee during an investigatory interview, the CERB has been guided by the general principles set forth in NLRB v. Weingarten, 420 U.S. 251 (1975).[366]

Investigatory Interview

A meeting is investigatory in nature if the employer’s purpose is to investigate the conduct of an employee and the interview is convened to elicit information from the employee or to support a further decision to impose discipline.[367]

If the employer’s sole purpose of the meeting is to inform an employee of, or to impose previously determined discipline and no investigation is involved, then the employee does not have a right to union representation.[368]

The test for whether an employee reasonably believes that an investigation will result in discipline is whether a reasonable person in the employee’s situation would have believed that adverse action would follow.[369]

Request for Representation

The right to union representation arises when the employee reasonably believes that the investigation will result in discipline, and the employee makes a valid request for union representation.[370]

Nothing in the Law requires that an employee use certain specific words to invoke Weingarten rights; the determination must be contextual and fact-specific.[371]

Union Representative’s Role

If an employee invokes his or her right to have a union representative present at an investigatory interview, the representative’s role is to “clarify the facts,” “elicit favorable facts,” and to otherwise assist an employee “who may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.”[372]

In examining the role of a union representative during the course of an investigatory interview and the extent to which an employer may lawfully regulate that role, the CERB balances the right of an employer to investigate alleged employee misconduct and the right of an employee to union assistance.[373]

The ultimate issue is whether an employer’s conduct unlawfully interfered with, restrained or coerced an employee in the exercise of rights guaranteed under Section 2 of the Law.[374]

Although an employer has no duty to bargain with a union representative at an investigatory interview, an employer may not relegate a union representative to the role of a passive observer, nor may the employer preclude the representative from assisting the employee or clarifying the facts.[375]

An employer may not inform a union representative during an investigatory interview that he cannot speak because he is only present as a witness.[376]

Section 10(a)(2) of the Law makes it a prohibited practice to dominate, interfere or assist in the formation, existence or administration of any employee organization. To establish a violation of Section 10(a)(2), the evidence must demonstrate that the employer's conduct significantly interfered with the existence and administration of the Union.[377] Situations in which the CERB has found that the employer violated the Law include:

Refusing to implement authorized union dues deduction increases absent a written confirmation from the union that the dues would not be used for dental insurance premiums.[378]

Unilaterally determining the amount of a union’s agency service fee coupled with refusing to fulfill the terms of the contract with respect to service fees.[379]

Failing to remit dues payments to a union deducted pursuant to written authorization.[380]

Bargaining with an incumbent union after a question of representation has been raised by a rival union.[381]

Section 10(a)(3) of the Law states that an employer may not discriminate in regard to hiring, tenure, or any term or condition of employment to encourage or discourage membership in any employee organization. To establish a prima facie case of discrimination, a charging party must establish the following:

An employee was engaged in activity protected by Section 2 of the Law;

The employer knew of that conduct;

The employer took adverse action against the employee; and

The employer took the adverse action to discourage the protected activity.[383]

Concerted, Protected Activity

Section 2 of the Law requires that the employee demonstrate he or she is engaged in “concerted” activity for the activity to be protected. An employee’s activity is protected if it focuses on generally applicable terms and conditions of employment that impact the collective bargaining unit as a whole.[384] To be concerted, the evidence must demonstrate that the employee is acting with other employees, or on the authority of other employees, rather than acting out of self-interest.[385] Examples of concerted, protected activity may also include an individual seeking to enforce rights in a collective bargaining agreement, such as:[386]

Filing and processing of a grievance.[387]

Filing a contract-based civil service classification appeal.[388]

Employer Knowledge

A charging party may prove an employer’s knowledge of an employee’s union activities by direct or circumstantial evidence.[389] Factors that the CERB consider in determining whether circumstantial evidence of knowledge exists include the following:

Timing of the alleged discriminatory actions.

The employer’s general knowledge of its employee’s union activities.

The employer’s animus against the union.

The pretextual reasons given for the adverse personnel actions.[390]

Employer knowledge of protected activity also may be inferred in a “small plant” where union activities were carried on in a manner which made it likely that the employer had an opportunity to observe them.[391]

Adverse Action

Adverse action has been defined as an adverse personnel action, such as the following:

Suspension.

Discharge.

Involuntary transfer.

Reduction in supervisory authority.[392]

The mere assignment of additional responsibilities, though possibly inconvenient or even undesirable, does not constitute an adverse employment action unless it materially disadvantages the affected employee in some way.[393] Because there must be real harm, subjective feelings of disappointment and disillusionment will not suffice.[394] Other examples of adverse action include:

An engineering professor’s assignment to teach all math courses and no engineering course.[395]

A police sergeant’s permanent assignment to desk duty.[396]

An involuntary transfer to a less preferable position.[397]

Motivation

A charging party may proffer direct or indirect evidence to establish improper employer motivation.[398]

Direct Evidence Defined

Direct evidence is evidence that, if believed, results in an inescapable, or at least highly probable, inference that a forbidden bias was present in the workplace.[399] Stray remarks in the workplace, statements by people without the power to make employment decisions, and statements made by decision makers unrelated to the decisional process itself are not sufficient to establish direct evidence.[400]

Direct Evidence: Two-Step Analysis

Where a charging party proffers direct evidence of discrimination as part of its prima facie case, the CERB applies the following two-step analysis to determine if an employer has retaliated against an employee for concerted, protected activity:[401]

The charging party must first prove by a preponderance of the evidence that a proscribed factor played a motivating factor in the challenged employment decision.

The burden of persuasion then shifts to the employer who may prevail by proving that it would have made the same decision even without the illegitimate motive.[402]

Indirect Evidence Defined

Absent direct evidence of improper motivation, unlawful motivation may be established through circumstantial evidence and reasonable inferences drawn from that evidence.[403] Factors considered in determining the existence of improper motivation include:

The timing of the adverse action in relation to the protected activity.[404]

The employer’s general hostility toward the union or toward concerted activity.[405]

Inconsistent or shifting reasons for the adverse action.[406]

Sudden resurrection of previously condoned transgressions.[407]

Departure from longstanding practices.[408]

The insubstantiality of the reasons given for the adverse action.[409]

Indirect Evidence: Three-Step Analysis

In cases where the charging party proffers indirect evidence of discrimination, the CERB applies the following three-step analysis to determine if an employer has retaliated against an employee for concerted, protected activity:[410]

A charging party must first establish a prima facie case of retaliation.

The employer may rebut the prima facie case by producing evidence that it had a legitimate, non-discriminatory motive for taking the adverse action.[411]

The charging party must then prove by a preponderance of the evidence that “but for” the protected activity, the employer would not have taken the adverse action.[412]

It is a prohibited practice for a public employer to discharge or otherwise discriminate against an employee for engaging in concerted, protected activity that specifically includes signing or filing an affidavit, petition or complaint, or giving testimony as part of a DLR proceeding; or forming, joining, or choosing to be represented by an employee organization.[413] Otherwise, the same elements of proof apply to alleged violations of both Sections 10(a)(3) and 10(a)(4) of the Law.[414]

The DLR considers the protection of Section 10(a)(4) so critical to its ability to investigate complaints and keep channels of information open that its protection has been interpreted to extend to employees not covered by Section 1.[415]

It is a violation of Section 10(a)(5) of the Law for an employer to refuse to bargain in good faith as required by Section 6. Section 6 of the Law obligates employees and employee organizations to “negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment…. but such obligation shall not compel either party to agree to a proposal or make a concession.''[416]

Scope of Bargaining

Either party commits a prohibited practice when it refuses a demand to negotiate over a mandatory subject of bargaining. Section 7(d) of the Law provides that the terms of a collective bargaining agreement supersede the conflicting terms of municipal personnel ordinances, by-laws, rules or regulations, and any of the enumerated statutes, rules, and regulations; therefore, an employer is not excused from the obligation to bargain collectively concerning a mandatory subject of bargaining.[417]

Mandatory Subjects

Generally, mandatory subjects of bargaining are those which directly impact terms and conditions of employment. The following are examples of mandatory subjects of bargaining:

Ability of union to address members during roll call.[418]

Ability to take a work vehicle home.[419]

Adding an unpaid block of time during the workday.[420]

Administration of a grievance procedure.[421]

Agency service fee.[422]

Allocation of costs for copying information reasonably relevant to a union's role as a bargaining agent.[423]

Block scheduling.[424]

Catastrophic illness leave bank.[425]

Class size.[426]

Compensation for added duties.[427]

Conducting union business during work hours.[428]

Decision to achieve a reduction in force by layoffs, and the means and method of implementing layoffs.[429]

Domestic violence policy.[430]

Dress code, appearance and grooming standards.[431]

Drug testing.[432]

Eligibility for paid injured-on-duty leave.[433]

Eliminating a split shift.[434]

Employee and employee exchange of tours.[435]

Employee use of non-active working time.[436]

Employer contributions to health and welfare trust funds.[437]

Employer-imposed restrictions upon the right of employees to accept outside employment.[438]

Granting of leave.[439]

Free employee parking.[440]

Health insurance benefits.[441]

Health insurance buyout.[442]

Initial wages for new positions.[443]

Involuntary deductions from employees' paychecks.[444]

Job duties.[445]

Length of school day.[446]

Method for payback of early retirement incentive.[447]

Method of calculating seniority.[448]

Number of employees on a piece of firefighting apparatus while responding to an alarm to the extent that a question of safety is raised.[449]

On-premise access to employees for union business.[450]

Paid details.[451]

Payday schedules.[452]

Percentage of employer contribution to group insurance.[453]

Performance evaluation systems.[454]

Physical examination by an employer-designated physician in order to qualify for disability leave.[455]

Promotional procedures.[456]

Policies that provide for the discipline and/or discharge of employees who violate them.[457]

Recoupment of workers compensation payments.[458]

Regularly scheduled overtime.[459]

Residency requirements for continued employment and promotion of unit members.[460]

Return to work after leave.[461]

Smoking policies.[462]

Teaching load.[463]

Time clocks and surveillance systems.[464]

Union dues check-off.[465]

Wage reopener provisions.[466]

Work load.[467]

Permissive Subjects

Permissive subjects of bargaining involve core governmental decisions.[468] Either the employer or union may refuse to negotiate over a permissive subject. If the parties do bargain, neither party may insist on bargaining to impasse.[469] However, once the parties agree on permissive subject, neither party may unilaterally alter its terms during the life of the collective bargaining agreement.[470] Examples of permissive subjects of bargaining include:

Abolishing or creating positions.[471]

Addition of a third party as a condition precedent to a collective bargaining agreement.[472]

Conforming the method of calculating retirement benefits to the requirements of M.G.L. c.32.[473]

Description and scope of the bargaining unit.[474]

Hiring additional employees to perform unit work.[475]

Holding grievance hearings in open session.[476]

Level of services decisions.[477]

Limiting the number unit members who appear at arraignments.[478]

Loss of ad hoc or unscheduled overtime opportunities.[479]

Matters of educational policy.[480]

Method of prioritizing paid details.[481]

Minimum manning per apparatus while responding to mutual aid cases where there is no safety issue.[482]

Minimum manning per shift.[483]

Placing an article on the town warrant seeking to rescind a local option law not enumerated in Section 7(d) of M.G.L. c.150E.[484]

Reassigning district court prosecutor's duties from police officers to town counsel.[485]

Reorganization of an employer’s operations.[486]

Using a polygraph examination in the investigation of criminal activity by police officers.[487]

Impact Bargaining

In cases where the employer is not required to bargain over a core governmental decision, it may still have an obligation to bargain over the impacts of its decision on employees' wages, hours, and other terms and conditions of employment.[488] For example, the CERB has found that employers must bargain about the impacts of the following decisions:

A reduction in force.[489]

Assigning non-unit employees to perform auxiliary services.[490]

Discontinuing the prior practice of allowing employees to choose the effective date of their retirement and to receive a lump sum payment upon retirement instead of accrued unused vacation even though the decision was made by an independent third party.[491]

Implementing a new tax withholding requirement for parking fringe benefits.[492]

Implementing a policy that changes the level of services offered.[493]

Reassigning prosecution duties from police prosecutors to town counsel.[494]

Requiring unit members to use specialized shotguns and ammunition as part of a less lethal force policy.[495]

Good Faith

In General

The "good faith" requirement of bargaining concerns the parties’ behavior. Parties to negotiations must bargain with an open and fair mind, have a sincere purpose to find a basis of agreement, and make reasonable efforts to compromise their differences.[496] In assessing the good faith requirement, the CERB does not look merely to isolated, specific instances of bad faith, but to the totality of the parties' conduct, including acts away from the bargaining table.[497]

Refusal to Negotiate

The CERB has determined that the following conduct violates the duty to bargain in good faith:

Refusing to meet with the union when it has requested a negotiating session.[498]

Refusing to negotiate a new contract with a newly-created unit when the legislature enacts emergency legislation severing part of a unit covered by a contract [499]

Failing or refusing to process grievances that arose out of a collective bargaining agreement with a predecessor union.[500]

Imposing unilateral conditions on a pilot school conversion vote beyond those contained in collective bargaining agreement.[501]

Attempts to Bypass Union/Direct Dealing

An employer may not deal directly with employees in the bargaining unit on matters that are properly the subject of negotiations with the bargaining unit's exclusive representative.[502] Surveys of employees regarding mandatory subjects of bargaining constitute direct dealing if bargaining discussions have begun or are imminent.[503]

Section 5 of the Law permits an employee to meet with the employer to resolve a grievance as long as the union has the opportunity to be present.[504]

Effect of Pending Litigation

A party cannot refuse to bargain because a prohibited practice charge has been brought against it. Similarly, bargaining may not be contingent upon the withdrawal or resolution of pending prohibited practice charges or any other pending litigation.[505]

Employer Negotiator

The CERB considers the powers of the employer's bargaining representative in determining whether it has bargained in good faith. The employer must appoint a bargaining representative that possesses sufficient authority to make commitments on substantive provisions of a proposed agreement.[506]

Open Meetings and Disclosure

The CERB has determined the following with regard to bargaining and grievance meetings:

The open meeting law does not require open sessions for collective bargaining.[507] However, the parties may agree to negotiate in public.[508]

No party may insist to impasse that grievance hearings be conducted in open session.[509]

Neither party may require disclosure of the composition of the other side's bargaining team as a condition precedent to negotiations or coerce the other party in its choice of a bargaining representative.[510]

Process of Negotiations

The following are guidelines regarding the process of negotiations:

Refusing to meet is a per se violation of the Law and does not require an affirmative demonstration of bad faith.[511]

Withdrawing an offer made in earlier bargaining sessions may constitute unlawful regressive bargaining.[512]

Merely attending a prescribed number of meetings without engaging in meaningful discussions is not good faith bargaining.[513]

The CERB views with disfavor a party that causes long lapses between bargaining sessions.[514]

An employer may lawfully propose a 0% wage increase for economic or philosophical reasons, but may not refuse to discuss wages.[515]

Failing to correct misrepresentations of material facts made during negotiations after learning such statements were false is unlawful.[516]

After an alleged impasse, the duty to bargain is revived when either party indicates a desire to negotiate in good faith over previously deadlocked issues.[517]

Neither party may establish an artificial or unreasonable deadline for completing negotiations in an effort to foreshorten bargaining.[518]

Finalizing the Agreement

The duty to bargain in good faith extends to finalizing the negotiated agreement:

When the parties have reached agreement on all substantive issues to a contract, the agreement must be reduced to writing.[519]

Neither party may refuse to execute an agreed-upon collective bargaining agreement.[520]

Where the employer has bargained and reached an agreement incorporating permissive and mandatory subjects of bargaining, the employer is obligated to reduce to writing and execute the entire agreement.[521]

An employer may not go to the end in negotiating the terms of an agreement, and then confront the union with a condition of third party approval which could frustrate any bargain or set off a new round of negotiations.[522]

A party may not enter negotiations with the declaration that it would decline to agree to any contract unless it contained a term making its binding effect contingent upon third-party approval.[523]

Both parties may lawfully agree, as part of the negotiations, that the agreement between them include a third-party approval provision.[524]

Oral modifications of a written contract are effective and such orally modified terms may supersede the provisions of statutes listed in Section 7(d) of the Law.[525]

Ground rules that require parties to reduce all tentative agreements to writing may preclude oral agreements.[526]

Duty to Submit the Agreement for Funding

Pursuant to Section 7(b) of the Law an employer must submit a request for appropriations necessary to fund the cost items of the agreement to the appropriate legislative body. If the employer does not receive the required action from the legislature, the parties return to the bargaining table.[527]

State contract funding requires appropriation approved by both the Legislature and the Governor. Thus, even after submitting a request for funding to the Legislature that is in accord with the negotiated agreement, the Governor may exercise his constitutional veto power and return an appropriation bill to the Legislature unsigned.

Elected successor public officials must submit a request for funding of a predecessor’s negotiated collective bargaining agreement, but may not be compelled to publicly support it.[528]

Requests for funding may not be conditioned on the occurrence of another event.[529] However, a contingent request or other violation of Section 7(b) of the Law, does not, in and of itself, constitute a failure of the duty to bargain in good faith under Section 10(a)(5) of the Law. [530]

Employers are obligated to submit an appropriation request to fund a JLMC award regardless of their concerns about the sufficiency of the funding sources.[531]

Employers and exclusive employee representatives are required to support JLMC interest arbitrations awards in the same way and to the same extent as they are required to support any other decision or determination that they agree to pursuant to the Law.[532]

An employer does not violate the Law if its appropriation request includes pertinent information concerning fiscal and public policy matters.[533]

Under certain circumstances, the form, contents or legality of a Section 7(b) request may indicate that the employer has violated its duty to bargain in good faith.[534] For example, a particularly negative letter requesting an appropriation but recommending rejection sent shortly after negotiations concluded would be probative of a lack of good faith bargaining during negotiations.[535]

School committees in cities and towns in which the provisions of M.G.L. c. 71, Section 34 are operative are not required to submit requests for appropriations to fund collective bargaining agreements to their legislative bodies.[536] Accordingly, school committees may not refuse to execute or implement a negotiated agreement merely because the legislative body has not funded it.[537]

Duty to Provide Information

The duty to bargain encompasses the duty of an employer to disclose to a union information that is relevant and reasonably necessary to the union’s execution of its duties as exclusive bargaining representative.[538] Once a union has shown that the requested information is relevant and reasonably necessary to its duties as bargaining agent, the employer has the burden of demonstrating that its concerns about disclosure of the information are legitimate and substantial.[539] In addition, the following guidelines are instructive in such cases:

The standard for determining relevancy is a liberal one, similar to the standard for determining relevancy in discovery proceedings in civil litigation.[540]

The employer must establish that it has made reasonable efforts to provide the union with as much of the requested information as possible, consistent with the employer's expressed concerns.[541]

The employer must discuss (but the union is not required to negotiate) alternative methods of providing the union access to the information.[542]

The fact that information is available from another source, e.g., information that is a matter of public record, is not a sufficient defense to a request for information.[543]

Where the employer raises statutory defenses to its failure to produce information, such as the protections of the Fair Information Practices Act (FIPA) or the Commonwealth’s privacy laws, the CERB must read Chapter 150E and those laws together to protect legitimate interests under the statutes.[544]

The CERB may order an in camera review of the information at issue to determine whether the employer has a legitimate and substantial need for nondisclosure. If the CERB orders the employer to disclose the information, it may require certain safeguards.[545]

An employer also may not unreasonably delay providing requested information that is relevant and reasonably necessary to the employee organization’s responsibilities as the exclusive collective bargaining representative.[546] The CERB considers a variety of factors in determining whether an employer’s delay is unreasonable, including:

Whether the delay diminishes the employee organization’s ability to fulfill its role as the exclusive representative.[547]

The extensive nature of the request.[548]

The difficulty of gathering the information.[549]

The period of time between the request and the receipt of information.[550]

Whether the employee organization was forced to file a prohibited practice charge to retrieve the information.[551]

Transfer of Bargaining Unit Work

The Law requires a public employer to give the exclusive collective bargaining representative of its employees prior notice and an opportunity to bargain before transferring bargaining unit work to non-bargaining unit personnel.[552] To determine whether an employer has unlawfully transferred bargaining unit work, the CERB considers the following factors:

Whether the employer transferred bargaining unit work to non-unit personnel.

Whether the transfer of unit work to non-unit employees has an adverse impact on individual employees or the unit itself.

Whether the employer gave the bargaining representative prior notice and an opportunity to bargain over the decision to transfer the work.[553]

In situations where the work is considered shared work that is traditionally performed by both bargaining unit and non-bargaining unit personnel, the work in question is not recognized as exclusively bargaining unit work.[554] In these shared work situations, the employer must bargain only when there is a calculated displacement of bargaining unit work.[555]

Contract Repudiation

Section 6 of the Law requires public employers and unions to meet at reasonable times to negotiate in good faith regarding wages, hours, standards of productivity and performance, and any other terms and conditions of employment. Repudiating a collectively-bargained agreement by deliberately refusing to abide by or to implement an agreement's unambiguous terms violates the duty to bargain in good faith.[556] Specifically:

In order for the parties to have an agreement, there must be a meeting of the minds on the actual terms of the agreement.[557]

To achieve a meeting of the minds, the parties must manifest assent to the terms of the agreement.[558]

If the evidence is insufficient to find an agreement or if the parties hold differing good faith interpretations of the language at issue, the CERB concludes that no repudiation has occurred.[559]

If the language is ambiguous, the CERB examines applicable bargaining history to determine whether the parties reached an agreement.[560]

There is no repudiation of an agreement if the language of the agreement is ambiguous, and there is no evidence of bargaining history to resolve the ambiguity.[561]

Unilateral Change

An employer is obligated to provide the exclusive representative an opportunity to negotiate before changing an existing condition of employment or implementing a new condition of employment involving a mandatory subject of bargaining.[562] The employer’s obligation to bargain extends to working conditions established through past practice as well as those specified in a collective bargaining agreement.[563] To establish a violation, a union must demonstrate the following:

The employer altered an existing practice or instituted a new one.

The change affected a mandatory subject of bargaining.

The change was established without prior notice and an opportunity to bargain.[564]

Change to an Existing Practice or Instituting a New Practice

To determine whether a practice exists, the CERB analyzes the combination of facts upon which the alleged practice is predicated, including whether the practice has occurred with regularity over a sufficient period of time so that it is reasonable to expect that the practice will continue.[565] The CERB also analyzes whether the practice:

Is unequivocal.

Existed substantially unvaried for a reasonable period of time.

Is known and accepted by both parties.[566]

In addition, a condition of employment may be found despite sporadic or infrequent activity only where a consistent practice that applies to rare circumstances is followed each time that the circumstances preceding the practice recur.[567]

In determining whether there has been a change in a practice or condition of employment, the CERB has held:

A mere change in the procedure for administering a condition of employment where the actual condition remains intact does not amount to a unilateral change.[568]

When an employer develops a new method for measuring existing performance criteria, no duty to bargain attaches unless the actual evaluation criteria are changed.[569]

The fact that the CERB finds that no existing practice has been altered does not foreclose the possibility of finding that a new practice has been unilaterally instituted by an employer.[570]

Mandatory Subject of Bargaining

The change must impact a mandatory subject of bargaining.[571] See above for examples of mandatory subjects of bargaining.

Notice and Opportunity to Bargain

The employer must notify the union of potential changes before they are implemented. Specifically:

The information conveyed to the union must be sufficiently clear to make a judgment as to an appropriate response, and far enough in advance of implementation to allow for effective bargaining.[572]

The employer’s duty is not satisfied by presenting the change as a fait accompli, where the employer’s conduct has progressed to a point that a demand to bargain would be fruitless, and then offering to bargain.[573]

Impasse

After good faith negotiations have exhausted the prospects of concluding an agreement, an employer may implement changes in terms and conditions of employment that are reasonably comprehended within its pre-impasse proposals.[574] The factors that the CERB weighs to determine whether an impasse exists include:

Bargaining history.

The good faith of the parties in negotiations.

The length of the negotiations.

The importance of the issue or issues as to which there is disagreement.

The contemporaneous understanding of the parties as to the state of the negotiations.[575]

The CERB also assess the likelihood of further movement by either party, and whether they have exhausted all possibility of compromise.[576] Where one side indicates that their position is not fixed, but rather is flexible, the declaration of impasse by the other is premature.[577]

Section 9 of Chapter 150E prohibits public employers from implementing unilateral changes during successor negotiations after a Section 9 petition for mediation has been filed with the DLR until those procedures have been completed.[578] However, participation in Section 9 proceedings may not preclude an employer from making unilateral changes before completing the collective bargaining process if the employer is able to demonstrate that externally imposed circumstances required unilateral action by a date certain.[579]

Waiver of the Right to Bargain by Contract

An employer may argue that the union waived its right to bargain by contract. The following guidelines are relevant:

A waiver must be knowing, conscious, and unequivocal.[580]

The matter waived was fully explored and consciously yielded.[581]

A broad management rights clause is not an effective waiver.[582]

Specific language in a management rights clause that relates to a disputed issue is sufficient to constitute a waiver.[583]

While a "zipper clause" (a provision making the contract the exclusive statement of the parties' rights) may support a finding of a waiver, a broadly formed clause is too vague to infer a clear and unmistakable waiver.[584]

The absence of a provision does not prove waiver.[585]

If the questioned language is ambiguous, the CERB looks to the bargaining history between the parties to determine whether a contractual waiver has taken place.[586]

Waiver of the Right to Bargain By Inaction

An employer may also assert that the union waived its right to bargain by its inaction. To do so, an employer must establish that the union:

Had actual knowledge or notice of the proposed change.

Had a reasonable opportunity to negotiate over the subject.

Unreasonably or inexplicably failed to bargain or request bargaining.[587]

In addition, in cases involving the affirmative defense of waiver by inaction, the CERB has held:

The filing of a charge, after protesting a unilateral change, does not constitute a waiver even though there has been no formal request to bargain.[588]

It will not apply the waiver by inaction doctrine in cases where a union refuses to bargain about a mandatory subject of bargaining apart from impending or ongoing successor negotiations.[589]

The doctrine of waiver by inaction should not be applied where the union is presented with a fait accompli. In such cases, the union is not required to make a demand to bargain in order to preserve its rights.[590]

Defense of Economic or Other Exigency

When an employer raises the affirmative defense of exigency, which would permit it to unilaterally implement changes in certain circumstances, the CERB employs a three-part test:

Circumstances beyond the employer’s control must require the imposition of a deadline for negotiations.

Section 10(a)(6) of the Law requires that employers participate in good faith in the mediation, fact-finding, and arbitration procedures set forth in Sections 8 and 9 of the Law.[592] An individual does not have standing to attempt to enforce an employer’s duty to bargain under Section 10(a)(6) of the Law.[593]

[376]Suffolk County Sheriff’s Department, 28 MLC 253 (2002); Suffolk County Sheriff’s Department, 39 MLC 143 (2012) (an employer may not prevent a union representative from immediately clarifying a question during an investigatory interview, even where the employer permits the union representative to speak later in the meeting).

[377]Commonwealth of Massachusetts Commissioner of Administration and Finance, 27 MLC 11 (2000) (the employer’s solicitation of volunteers for a parking committee does not violate Section 10(a)(2) of the Law).

[381]Springfield School Committee, 27 MLC 15 (2000) (the obligation of strict employer neutrality arises when an employer has notice that the DLR has made its initial determination that a rival union’s petition and showing of interest are adequate to raise a question of representation); Town of Wakefield, 10 MLC 1016 (1983).

[385]Town of Southborough, 21 MLC 1242 (1994); Compare Commonwealth of Massachusetts, 14 MLC 1743 (1988) (probationary employee’s complaints with other employees about unhealthy working conditions constituted concerted activity) with Town of Athol, 25 MLC 208 (1999) (employee’s safety and work complaints did not constitute concerted activity because the employee was acting alone and without the authority of other employees).

[386] For additional examples of concerted, protected activity, as well as examples of activity that is not protected, please see Section III(C).

[397]Boston City Hospital,11 MLC 1065 (1984); Cf. City of Holyoke, 35 MLC 153(2009) (subjective opinions of co-workers expressed in casual office banter do not demonstrate that the transfer was adverse within the meaning of the Law).

[399] Town of Andover, 40 MLC 1 (20130 (School Committee admitted that employee’s termination was for activity that CERB determined was protected); City of Easthampton, 35 MLC 257 (2009) (supervisor’s statements to employee who filed grievance, and act of tearing up and throwing away grievance, was direct evidence of anti-union animus).

City of Taunton, 38 MLC 96 (2011); but see Duxbury School Committee, 25 MLC 22 (1998)(CERB held that use of video surveillance in this case was merely a more efficient and dependable means of enforcing existing work rules and did not affect an underlying term or condition of employment).

[470]City of Chelsea, 13 MLC 1144 (1986); but see City of Boston v. Boston Police Superiors Federation, 466 Mass. 210 (2013) (assignment and transfer are nondelegable police commissioner statutory powers and cannot be subject of valid collective bargaining provision). In addition, Chapter 589 of the Acts of 1987 outlines specific non-arbitrable subjects for police and fire unions and employers because they are inherent management rights, e.g., the right to appoint and promote

[502] Service Employees International Union, 431 Mass. 710 (2000); cf. City of Marlborough, 34 MLC 72 (2008) (there is no direct dealing violation if the parties’ contract contains a provision that allows direct discussions with employees over the matter at issue).

[544]Bristol County Sheriff’s Office, 28 MLC 113 (2001), aff’d sub nom. Sheriff of Bristol County v. Labor Relations Commission, 62 Mass. App. Ct. 665 (2004) (CERB ordered employer to provide information exempt from disclosure to union with certain restrictions); Sheriff’s Office of Middlesex County, 30 MLC 91 (2003); but see Plymouth County Sheriff’s Department, 34 MLC 58 (2007) (it is unlikely that the CERB or its agents will conduct an in camera review where a party that has the requested information fails to set forth adequately its justifications for non-disclosure).

[578]Cambridge Public Health Commission d/b/a Cambridge Health Alliance, 37 MLC 39 (2010) (Ruling on Motion for Summary Decision) (ruling leaves open question of whether or not Section 9 bans unilateral action in the context of successor negotiations absent a petition); but see Town of Stoughton, 19 MLC 1149 (1992) (Section 9 is inapplicable to police and fire negotiations, which are under the jurisdiction of the JLMC. In such cases, the CERB will evaluate whether the parties were at impasse at the time of the unilateral change).

[592] City of Boston, MUP-13-3371 et al., 41 MLC 119 (November 7, 2014) (employer violated Section 10(a)(6) of the Law by failing to provide requested information while JLMC proceedings were pending); City of Melrose, 28 MLC 53 (2001) (employer violated the Law by failing to comply with the legal obligation to submit an appropriation request to fund a JLMC-ordered arbitration award); cf. Chief Justice for the Administration and Management of the Trial Court, 37 MLC 181 (2011) (employer did not violate the Law when it withdrew economic proposals it made to a fact-finder because changed economic circumstances negatively impacted its ability to fund the proposals).

2. Union Prohibited Practices

Generally, the CERB does not interfere with union rules or actions that are within the legitimate domain of internal union affairs.[594] However, a union’s freedom to regulate its internal affairs must give way to certain overriding interests implicit in the Law.[595] The CERB has found overriding interests outweighing a union’s freedom to act in the following situations:

Testimony on behalf of an employer at a CERB proceeding;[596]

Determining appropriate bargaining units;[597] and

Prohibiting strikes.[598]

Duty of Fair Representation

Pursuant to Section 5 of the Law, a union has an obligation to represent all bargaining unit members without discrimination, and without regard to employee organization membership.[599] Although unions are permitted a wide range of reasonableness in fulfilling their statutory obligations, a union breaches this duty if its actions towards an employee are:

Unlawfully motivated;

Arbitrary;

Perfunctory; or

Reflective of inexcusable neglect.[600]

The CERB reviews the circumstances of each case to determine whether a union’s investigation or inquiry was sufficient for it to make a reasoned judgment in deciding whether to pursue or abandon a grievance.[601] The CERB finds a violation under the following circumstances:

A union ignores a grievance, inexplicably fails to take some required step, or gives the grievance merely cursory attention.[602]

A union fails to investigate, evaluate, or pursue an arguably meritorious grievance without explanation.[603]

There is an absence of a rational basis for a union’s decision and egregious unfairness or reckless omissions or disregard for an employee’s rights.[604]

A finding of honest mistake or ordinary or simple negligence, standing alone, does not constitute a breach of the duty of fair representation.[605]

As a remedy to an employee organization’s unlawful refusal to process a grievance to arbitration, the CERB does not order the employer to proceed to arbitration. Rather, the CERB orders the employee organization to take all affirmative steps to request that the employer waive the time limits contained in the parties’ contractual arbitration provisions. If the employer agrees to do so, the union must diligently process the grievance to arbitration. If the employer does not agree, the union remains liable for the employee’s monetary losses resulting from the union’s failure to process the grievance.[606]

Agency Service Fee

In General

Section 12 of the Law provides that public employees may be charged an agency fee by the exclusive bargaining representative as a condition of employment if the fee is required by a collective bargaining agreement ratified by a vote open to all members of the bargaining unit. It is a prohibited practice for a union to charge an objecting nonmember an amount in excess of the nonmember’s pro rata share of the costs of collective bargaining and contract administration.[607]

Whether a collective bargaining agreement will contain an agency service fee provision, and the substantive provisions regarding the fee, are mandatory subjects of bargaining.[608] An employer may violate Section 10(a)(5) of the Law if it refuses to impose upon a fee payer a contractually agreed-upon penalty, where the fee payer has not filed a charge with the DLR.[609]

DLR regulations detail the procedures a union must follow in order to ratify an agency service fee provision and to demand payment of the fee.[610] Failure to follow the procedures invalidates a union’s demand for a fee.[611]

Validity of Demands

Ratification

A demand for a service fee is not valid unless the contract requiring its payment has been executed and ratified by a majority tally in a vote open to all bargaining unit members.[612] The following guidelines regarding ratification apply:

A written record of the vote must be taken, but it is not necessary that a union take an individual count of the vote or keep a written record of each individual vote or the number of votes cast.[613]

The union must provide notice, which strictly conforms to DLR Regulation 17.03(5), to all bargaining unit members that a ratification procedure will take place.[614]

At the time of ratification, the union must make available for inspection, upon request, a copy of its Form 2, or an equivalent statement of financial receipts and disbursements for the previous fiscal year.[615]

Content of Demand

The union seeking a fee must serve a written demand on the employees. The following guidelines apply to the written demand:

The demand must include the amount of the fee, the period for which the fee is assessed, the method by which payment should be made, the person to whom payment should be made, and the consequences for failure to pay.[616]

The union must also notify the fee payer of the opportunity to challenge the fee through an adequate rebate procedure and provide certain financial information.[617]

The union must attach to the demand a copy of the entire text of the DLR’s agency service fee regulations.[618]

Service of Demand

A union violates the Law if it pursues payment or penalties for nonpayment of a service fee if the nonmember has not received the demand.[619] A union may rebut a nonmember’s evidence that it did not receive the demand by establishing that:

The nonmember was given the demand in person;

The nonmember or another competent adult residing with the nonmember signed a return receipt confirming delivery;

The demand was left at the nonmember’s last and usual residence;

A demand was mailed to a nonmember or left in the nonmember’s school mailbox; or

The nonmember deliberately evaded receipt.[620]

Access to Union Expenditure Information

At the time of the demand, the union must have Forms 1 and 2 on file at the DLR.[621] The union also must provide nonmembers with an adequate explanation of the basis of the service fee. At a minimum, this must include for the fiscal year preceding the period for which the fee is demanded:

A copy of an independent auditor’s financial statement of revenue and expenses;

A list of the major categories of the union’s expenses; and

A demonstration that none of the expenses listed in a particular category were used to subsidize nonchargeable activities, or an explanation of the share that was so used.[622]

Rebate Procedure

A union demanding a service fee must make available to nonmembers an internal procedure by which they may obtain a rebate of the fee that is in excess of the amount permitted by the Law. Unions must notify fee payers in writing of this procedure at the time the fee is demanded. The procedure must provide:

A prompt adjudication before an arbitrator not chosen exclusively by the union; and

An escrow or equivalent arrangement that guarantees that an objecting fee payer’s agency fee will not be used even temporarily for nonchargeable purposes.[623]

Providing Required Information

Any information that a union is required to provide as part of making a valid demand may be delivered electronically. 456 CMR 17.04 (4).

Challenges to the Amount of an Agency Service Fee

Union’s Burden of Proof

A union can meet its burden of proving that the amount of an agency service fee is equivalent to the nonmember’s pro rata share of the costs of collective bargaining and contract administration with the following evidence:

Evidence of all the amounts the union has spent permissibly and the total number of employees represented in the bargaining unit; or

Evidence that the membership dues for a particular year represented the members’ pro rata share of the anticipated union expenses for that year, and that particular proportion of those expenses were chargeable.[624] To qualify as a chargeable expense, the union expenditure must:

Be germane to collective-bargaining activity;

Be justified by the government’s vital policy interest in labor peace and avoiding “free riders;” and

Not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.[625]

Sufficiency of the Union’s Evidence at Hearing

At a minimum, the evidence a union must proffer to meet its burden of proof in an amount challenge should include audited financial records or equally reliable evidence itemizing the union’s expenditures and demonstrating how they relate to the categories in DLR Regulation 456 CMR 17.03.[626] A union may rely on a prima facie showing that its service fee calculations are correct. Its initial burden is to produce enough credible detail to warrant a finding that identified expenditures are chargeable.[627]

Summaries of union expenditures are only admissible when they meet the following criteria:

They are based on audited or equally reliable financial records;

They are organized according to the categories in Regulation 17.04;

They are introduced through witnesses who can knowledgeably testify about the nature and accuracy of the underlying expense data and who can sufficiently detail the summarized testimony to persuade the CERB that the summary is reliable; and

The underlying financial data must be made available to an objecting employee who requests the opportunity to examine it.[628]

Generally, the CERB may presume that the following expenses are chargeable:

Overhead expenses that are necessary to maintain the union’s existence.[629]

Contributions to union candidates for national union office.[630]

Certain union meetings and board of directors’ expenses.[631]

Other administrative costs are chargeable in proportion to the union’s over-all chargeable expenses.[632]

The fact that chargeable and nonchargeable activities are combined at a union meeting or conference does not render all the expenses nonchargeable. The evidence that the union has to produce in order to meet its burden of persuasion depends on the following factors:

The nature and purpose of the event;

The types of attendees at the event and their level of participation; and

The nature and extent of political activity at the meeting.[633]

To prove the permissibility of payments to a local union’s national, state, or regional affiliates, the local union must present evidence of how those payments were spent by the affiliates.[634]

Once a union makes its prima facie showing of chargeability, the fee payer assumes a limited burden of production to probe the union’s evidence and produce some evidence to rebut the union’s prima facie showing. At all times, the union retains the ultimate burden of persuasion.[635]

A union violates Section 10(b)(2) of the Law when it refuses to bargain in good faith. In general, a union's obligation to bargain in good faith mirrors an employer's good faith bargaining obligation under Section 10(a)(5) of the Law.[636] For additional information regarding a party’s duty to bargain in good faith, see Section III(F)(1)(e).

Section 10(b)(3) corresponds to the employer’s Section 10(a)(6) requirement to participate in good faith in mediation, fact-finding, and arbitration.[637] For further discussion regarding good faith participation in these processes, please see Section III(F)(1)(f).

____________________

[594]Switzer v. Labor Relations Commission, 36 Mass. App. Ct. 565 (1994) (the question of whether the union violated its constitution and by-laws is a matter for the courts, not the CERB); National Association of Government Employees, 13 MLC 1525 (1987).

[615]456 CMR 17.02(4); Fairhaven Educators Association, 13 MLC 1274 (1986) (requirement will be satisfied if the union makes its most current statement available, and can prove that it could not have prepared a more current one).

[621]456 CMR 17. 04(3); Malden Education Association, 11 MLC 1500 (1985) (the fee payer must show by a preponderance of the evidence that, at the time the union demanded the fee, it had not filed the required information with the DLR).

Feedback

Did you find what you were looking for on this webpage? * required

Yes

No

If "No," please tell us what you were looking for: * required

We use your feedback to help us improve this site but we are not able to respond directly. Please do not include personal or contact information. If you need a response, please locate the contact information elsewhere on this page or in the footer.

Is there anything else you would like to tell us?

We use your feedback to help us improve this site but we are not able to respond directly. Please do not include personal or contact information. If you need a response, please locate the contact information elsewhere on this page or in the footer.